RAJA SAJJAD AHMAD KHAN, J. Above captioned appeal has been preferred against the judgment of Additional District Judge empowered as Guardian Judge, Dhirkot dated 21.07.2018, whereby the application filed by appellant for appointment of guardianship of minors was dismissed while by accepting the application filed by respondent No,2 was allowed and she was appointed as guardian of minor .
2. The facts precisely stated are that appellant and respondent herein filed an application for appointment of guardianship of the minors before Additio nal District Judge empowered as Guardia n Judge, Dhirkot on 18.05.2017 and 26.08.2017 respectively . The applicant-respondent No.2 herein averred that the minors were living with applicant-respondent No,2 in the house of her parents at present. On 08.05.2017 at night, non-applicant/appellant No.1 herein, on the behest and pressure of non-applicant/appellant No,2 herein, pronounced divorce twice to the non-applicant No,1/respondent herein, and turned her out from the house after beating. Previously she had also been deserted for two years. In this regard she has also filed a suit for recovery of maintenance. At that time her minors were also living with her who was admitted in the school and got nursery education from village Kotli. Later on due to compromise she went back to the house of her in-laws and remained settled and gave birth a female child who is now 1 year two month age. The applicant can better look-after the minors as compared to appellant herein, therefore, in the interest of justice applicant-respondent herein may be appointed as guardian. The respondent resisted the application through filing written statement and also filing an application for appointment of guardian of minors and stated that applicant-respondent has no cause of action therefore, the application is liable to be dismissed.
3. The learned Guardian Judge, Dhirkot, after due process of law and hearing arguments of the learned Advocates for the parties, dismissed the application of appellant and accepted the applica tion of respondent herein, vide impugned judgment dated 21.07.2018, hence this appeal.
4. Raja Nasir Latif, the learned Counsel for the appellant reiterated the grounds already taken in the appeal and argued that the Court below committed grave error and illegality while passing the impugned order . The learned counsel further submitted that the appellant and respondent were husband and wife. The appellant divorced her on her demand and now she is living in the house of her parents. The learned Counsel stressed on the point that the welfare of the minors lies with the appellant (father) under the personal law, but the learned Guardian Judge failed to apply the relevant law. According to the learned counsel mere fact that the appellant has contracted a second marriage does not disentitle him from appointment of guardian and custody of the minor . The learned counsel further contended that minors are not properly being looked after nor they are educated by the respondent, therefore, by accepting the appeal, the custody of minors may be given to him for the welfare of the minors. In support of his contention the learned counsel placed reliance on 2018 SCMR 549, 2018 YLR 649, 2018 MLD 591 and 2018 MLD 574 .
5. On the other hand, Sardar Atta-ur-Rehman Abbasi, the learned counsel for the respondent fully defended the judgment recorded by the Guardian Judge. The learned counsel submitted that keeping in view of the facts of the case and welfare of the minors the Cour t below felt advised to retain the custody of the minors with the mother , respondent and did not disturb the same as the minors were being properly looked brought up and educated under her supervision. The learned counsel also submitted that appellant has contracted second marriage and he is also a blind person who did not provide maint enance allowance to the minors, he filed the application for guardianship after filing the suit for maintenance allowance from the applicant-respondent No,2 herein, therefore, he is not fit for appointment and custody of the minor children. The learned counsel maintained that the authorities cited and relied upon by the learned counsel for the appellant are distinguishable and have no bearing on the fact of the instant case. The learned Counsel defended the impugned decision on all counts and prayed for dismissal of the appeal.
In support of his arguments, the learned counsel placed reliance on 2005 YLR 547, 2015 YLR 2650 and 2008 YLR 1446 .
6. In the light of the arguments addresse d at Bar by learned counsel for the parties. I have carefully perused the record and guided myself from the case law cited by the learned counsel for the parties.
7. It may be mentioned that paramount consideration while deciding the question of custody of the minors is the welfare of the minors which has to be seen in view the age, sex and religion. The personal law has also to be taken into consideration.
8. The appellant and respondent were husband and wife. The appellant has divorced the respondent and has contracted second marriage. They were contesting for the guardianship and custody of their minors children namely Zain-ul-Abdeen and Kunza Bibi who are stated to be 8 and 2-1/2 years respectively .
9. In such like situation, it is incumben t upon the Court to see the convenience and welfare of the minor , the minors remained with their mother from the childhood; therefore, they are more familiar and akin to their mother as compared to their father . Section 17 of The Guardians and Wards Act 1890, postulates the matters to be considered by the Court in appointing the Guardian. If the husband opts for secon d marriage and lives and enjoys his life with his second wife, then it is paramount duty of the Court to see the convenience and welfare of the minor .
10 The contention of learned counsel for the appellant that the male child is now eight years of age as such, the respondent lost the right of custody is not well founded because the question is not of the age. The main factor for the Court is the welfare of the minor .
11 . In the present case, the trial Court rejected the application of the appellant on the basis of welfare of the minors. The trial Court after appreciating the evidence has rightly concluded, that as the appellant has contracted the second marriage, and he being a blind person having no source of income cannot himself look after his minor children, as such the minors cannot be given at the mercy of step-mother and if the minors given to his custody , they ultimately remain at the mercy of their step-mother , who cannot be a substitute of a real mother having a natural love and affection for her children, The female child naturally needs the company and association of a mother while, male child, even if crossed he throughout the period has been living with his mother .
12. In the light of the evidence, it is proved that real mother is looking after the minors in an appropriate manner while male child is also studying in a school. Nothing has been brought on record which may indicate that the minors children are not being brought up and looked after in bad manner , mere relationship of minors with appellant is not a sufficient ground to handover the custody of the minors and it would not be in the interest of minors to put them in an alien environment. Thus, in view of what has been stated above, the impugned decision has been recorded in a legal fashion, which does not call for any interference by this Court; which is maintained.
13 . The case law cited by the learned counsel for the appellant has no relevancy with the facts of the instant case, hence needs not to be discussed.
For the foregoing reasons, finding no force in this appeal, it is hereby dismissed. No order as to costs.